Doctors must ensure patients are aware of material risks after Supreme Court judgement, warns MDU

In a major change of policy, the Supreme Court in its judgement in Montgomery -v- Lanarkshire Health Board has introduced a new approach of informed patient consent for the first time in negligence law. The ruling has done away with the previous test, applying from the cases of Bolam and Sidaway that a doctor would not be negligent if the information given to a patient about a treatment or procedure was compatible with that which would be given by a responsible body of medical opinion, provided the standard was considered reasonable by a Court.

Dr Michael Devlin, head of professional standards and liaison at the MDU, said:

"The Supreme Court justified its decision on the basis of the change in the nature of the doctor/patient relationship since the case of Sidaway 30 years ago. The new legal approach recognises that patients want to be well-informed about significant risks and reasonable alternative treatments. However, warning patients about these risks is already enshrined in ethical guidance and the Supreme Court judgement endorses the approach to sharing information with patients contained in the GMC's consent guidance.

"Doctors will already be aware of the need to warn patients about material risks, but as a result of the judgement, making a detailed record of the information provided to the patient about the risks involved in proposed treatment is likely to be all the more important.

"While the new legal approach applies to cases of alleged negligent failure to inform about treatment risk, it does not apply to negligence actions more widely, which remain determined by the Bolam test."

The MDU has published detailed legal guidance for its members about the new test.